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C. L. Cham.]

IN RE LAMB, AN INSOLVENT.

[C. L. Cham.

which Mr. Read most strongly opposed the present application.

The defendant should therefore be ordered to find security for the equivalent of the rent at $200 a year from February, 1863, when it was lası paid, till November, 1864. wben possession may, if it can be, be recoverable, making $350; and in the further sum of $100 for the costs of the suit, making a total of $450. The recog. nizance will be in a penalty in double this amount, conditioned for the payment of thə costs and damages of the suit. The two sureties must also become respousible in the like penalty, but in the same recognizance jointly and severally for the due payment of the costs and damages of this suit, and that this recognizance and security be perfected by the sixteenth day of July instant.

IN RE LAMB, AN INSOLVENT. Insolvent Act of 1861--Applicatim hy insolvent for discharge

- Frawtulent preference - Neglect to keep proper books of

accounts-Measure of punishment. It appeared, on an application by an insolvent for his dis.

charge under the losolvent Act of 1864, that he h.d within three months before his assignment paid one of his creditors in full under such circumstances as was con. sidered to amount to a frandulent preference, and had neglected to keep proper cash buis or books of account suitable to his tride. The County Judge granted a discharge suspensively, to take effect four months after the

order made. Upon an appeal from this order by n creditor the judge in

Chambers thought that the judse below bad acted with extreme leniency, and though he wonld not interfere with the order that he made, dismissed the appeal, but with

ont costs. Remarks upon the breach of duty in not keeping proper

books of acount which should be severely punished. The requirements of the act on debtors a-king for discharge s could be peremptorily insisted on.

(Chambers, Nov. 27, 1866.] The facts of this case are fully set out in the petition of the creditors of the insolvent, who appealed against the order made by the judge of the County Court of the United Counties of Lennox and Addington, granting to the above insolvent a discharge, suspensively to take effect on 1st February, 1867.

The petition stated :

That the above named insolvent, Thomas Lamb, on the first day of June, in the year of our Lord 1865, made an assignment under the In-olvent Act of 1864, to Henry Thorp Forward, of the Town of Naponce, in the County of Lennox and Addington, Esquire.

That the petitioners were at the time of the said assignment, and previously thereto, and have ever since been, and still are creditors of the said insolvent to a large amount, and duly proved their claim against bim before the said assignee within the time and in the manner prescribed by the said Act.

That the insolvent gave notice of his intention to apply to the judge of tbe County Court of the Counties of Leunox and Addington on the tenth day of August, A.D. 1866, for a discharge under the said Act; and on that day be presented to said judge in his Chambers, in the Town of Napanee, a petition for such discharge by his attorney ad litem, which said petition was in the words and figures following, ibat is to say:

“ INSOLVENT ACT OF 1864. “In the County Court of the Counties of Lennox and Addington.

In the matter of Thomas Lamb, an insolvent.

“The petition of Thomas Lamb, of the Town of Napanee, in the Counties of Lennox and Addington, Merchant,

« Humbly sheweth, — That yo'ır petitioner made an assignment under the Insolvent Act of 1864, to Henry T. Forward, Esquire, official assignee, which assignment bears date the first day of June, in the year of our Lord one thousand eight hundred and sixty-five.

That one year has elapsed from the date of the said assignment, and your petitioner has not obtained from the required proportion of his creditors a consent to his disebarge.

“ That your petitioner has given notice of bis intention to apply for his discharge according 10 the provisions of the said act, and has complied with all the provisions and requirements of the said act

* Your petitioner therefore prays that he may obtain an absolute and final discharge under the above mentioned act.

“ Dated at Napanee this 10th day of August, A.D. 1866.

That on the said tenth day of August, At the time of the presentution of the said petition, the petitioners appeared, by William Albert Reeve, of the Town of Napanee, Esquire, their coupsel, and opposed the prayer of the said petition. Petitioners, examined the said insolvent upon oath before the said judge.

That after said insolvent had been so examined and had been cross-examined by his attorney ad litem, the said application was adjourned until the tenth day of September, A.D. 1866, to enable the petitioners to produce certain witnesses for the purpose of examining them before the said judge on the said application, and upon the said tenth day of September the said William Albert Reeve did produce certain witnesses before the said jutge, and examined them on behalf of the said petitioners touching the affairs of the said insolvent, which said witnesses or most of them were cross-examined by the attorney ad litem for said insolvent. [A copy of the examinations of the insolvent and the witnesses was annexed, but the matter of thein is sufficiently stated hereafter ]

That after hearing the evidence and the argumenis of counsel for the said insolvent, and for the petitioners and other creditors of said insolvent, the said julge of the County Court of the County of Lennox and Addington, on the sixth day of October, A D. 1866, in presence of connsel aforesaid, delivered bis judgment in writing upon the matter of said application as follows:

• In the matter of Thomas Lamb, an insolvent.

• The petioner made his assignment on ist June, 1865, and having been unable to obtain a composition and discharge froin his creditors, now seeks for an order from the court granting his discharge.

The prayer of his petition is opposed by several creditors ou the grounds of foulent retention or concealment of part of his e-lille. prevarication and false statements in ex:untura

C. L. Cham.]

IN RE LAMB, AN INSOLVENT.

(C. L. (ham.

tion, fraudulent preference of particular credit- as of the said insolvent, and having duly conors, and lastly, of deficient books of account. sidered the said allegations and proofs, do hereby

• On hearing the parties and attentively con- according to the form of the said Insolvent Act sidering the facts disclosed on the insolvents grant the discharge of the said Thomas Lamb examination before me, I see no reason to believe suspensively, and do order that such discharge that he has fraudulently concealed or retained shall be suspended until and shall go into operiany part of his effects, nor do I think that he tion and have eifect upon and after the first day was guilty of any prevarication or false state- of February, in the year one thousand eight ments, on the contrary the insolvents conduct bundred and sixty-seven. sisce his assigoment seems to me to be fair and ** Witness my band,” &c. bonest, and not liable to the censures attempted The petitioners being dissatisfied with the to be cast upon it.

said order and decision, made an applicas. There are, however, two charges made

tion to a judge of one of the Superior Courts against the insolvent respecting his conduct

of Common Law, presiding in Chambers in before the assignment to wbich no answer appears Toronto, to be allowed to appeal from ihe said to be given. It is shewn that in the month of

order and decision, and on the seventh day of April, 1865, within less than three months before

November, A.D, 1866, an order was granted by the assigoment, the insolvent being indebted to the Cbief Justice of Upper Canada, allowing bis shopman, McCan, iv $300 for wages and the petitioners to appeal to one of the judges borrowed money, gave him promissory notes of

of the Superior Courts of Common Law in bis customers to the amount of $400, in full satis

Chambers from the said order. faction of the debt. There can be no doubt tbat That since the allowance of the said appeal, this transaction was wholly illegal and amounted and within five days therefrom, the petitioners to a fraudulent preference; however natural it

guve security in the mapper required by tbe said may be for a man pressed by his servant, who Insolvent Act of 1864, that they would duly was also his creditor, for wages and loans to

prosecute the said appeal, and pay all costs. satisfy such a claim in the way the insolvent did,

The petitioners therefore prayed that the said yet the provisions of the Insolvent Act of 1864

order and decision of the judge of the County clearly point out that such a payment is a fraud

Court of the County of Lennox and Addington upon the other creditors.

might be revised, and the same reversell and ibe “ The second charge made against the insolv

discharge of the said insolvent, Thomas Lamb, ent is, that he did not keep a cash book yor otber under ihe said art might be absolutely refused, sufficient books of account suitable to bis trade,

or that such order be made in the matter as which is not denied by the insolvent.

should seem meet. • Under these circumstances, although I do

Osler for the appellants. not consider with the creditors, that the insolvent

llolmested for the insolvents. should never be discharged at all, yet it seems

No cases were cited by either party. right that some penalty should be infiicted in consequence of the faults comunitied hy bim in

HAGARTY, J – The learned judge below conthe above mentioned instances I therefore sidered the insolvent's conduct to be reprehepsiorder that bis discharge shuillie suspended until ble in not keeping proper books of account, and 1st February, 1867, and will sigo an order grant- suspeuded his discharge for six months I do ing his discharge suspensively to take effect on not think it wise to interfere with the exercise of that day.”

such a discretion on the part of a julge who has That in accordance wicb the sand juilgment the heard the examination of the insolvent and been said judge granted and signed an order, bearing cognizant of the various proceedings in the case, date on the said sixth day of October, a D. 1866, except in a very clear case in which the appellate as follows:

jurisdiction is necessarily invoked to prevent an “ INSOLVEXT ACT OF 1864.

undoubted injustice. “ In the matter of Thonias Limh, an insolvent. I think that the learned judge acted with ex

* Wbereas, Thomas Lamb, of the Town of treme leviency, and po-sibly took a milder view Napnnee, in the County of Lennox kod Adding- of the bandrupt's misconduct than I should have ton, Merchant, made an assignment under tbe done, judging wholly from the papers before me. Insolvent Act of 1864, bearing date upon the Had he, with his snperior opportunities of formfirst day of June, in the year 1865 ; and whereas ing a correct opinion, passed a much more severe after the expiration of one year from the date of sentence I should certainly not interfere with it the said assignment, having given due notice on the insolvent's application I think the thereof, and having in all respects complied with insolvent's neglect to keep proper books a most the provisions of the said Act, the said Thomas serious breach of duty, causing great possible Lambdid on the tenth day of August, in the injury to his creditors, and tending to raise strong year one thousand eight hundred and sixty-six, distrust of his integrity. The evidence of his present his petition to me, James Joseph Bur- being a very illiterate man suggests the only rowes, Judge of the County Court of the County | possible excuse, and weighed, I presume, with of Lennox and Adilington, prilying for his dis. the learned judge. It might perhaps be said charge under : he said act, and where's the said that it was not very prudent for his creditors to insolvent has undergone a full examination before trust a man so unfit for the conduct of business me touching bis affairs.

or the keeping of accounts with such large quan* Now therefore I, tbe said julge, after hear- tities of goods ou credit. I do not differ from ing the said insolvent and such of his creditors the learned judge's view as to the alleged preferas objected to bis discharge, and all the evidence ence. As to the neglect to keep proper books I adduced as well on the part of the soul creditors think it would be well always to punish such a Chan. Rep.)

Fowler v. Boultoy.

[Chan. Rep.

manner.

case.

brench of duty in a severe and exemplary was a party to the suit. In one case of the latter

class notice is said to have been requiredi; but We have in this country in our legislation this appears to bave been done not on the ground done everything to favour debtors and render that a notice was necessary, but that the court, the escape from liability as easy as possible in the exercise of its discretion, thought it to be to them. It will be well at all events that expedient in the circumstances of that particular the very easy requirements of the Insolvent Act

A different rule would increase expense on debtors asking for their discharge should be and delay, and would afford additional temptaperemptorily insisted on, and proper punishment tion to unwilling parties to try the experiment awarded to any breach of the trader's duties in of declining to attend, and to put opponents to conducting his business.

the inconvenience, trouble and expense which I gladly avail myself of the power given me such a course imposes. hy sub-sec. 6 of sec. 7 of the act, and, while

The first objection which the plaintiff's counsel feeling bound to dismiss the appeal, do so without made before the examiner was, that the plaintiff costs.

had amended his bill since these defendants I think Mr Lamb's creditors bad just ground

answered, and that the time for answering the for feeling indignant at bis conduct and in op- amendments has not expired. I see notbing ia posing bis discharge, and endeavouring to have the order to sustain this objection. The examisome punishment inflicted upon him.

nation is a substitute for the old practice of filing a cross-bill for discovery; and in such case the

rule was, that the defendant to the original bill CHANCERY REPORTS.

was not entitled to an answer to the cross-bill

until he answered the original bill, but if the (Reported by Alex. GRANT, Esq., Barrister at Law, Reporter

plaintiff in the suit amended his bill after the to the Court.)

defendant answered, this was no ground for

postponing his own answer to the cross-bill. I FOWLER v. Boultox.

see no reason why the amendmont should have a Practica--Examination of parties

different effect in tbis respect under the substi

tuted proceedings which have been adopted in Where a plaintiff, though duly served with suhpoena and this country. the examiner's appointment. does not appear to be ex.

The second objection was that the plaintiff's amined under 22nd Order of the 3rd of June, 1853, tho defendant's motion that he do attend or stand committed, solicitors bad not been served with sufficient is made fa parte, unless the court sees fit to direct potice notice of the intended examination, but only with

to be given. A defendant has a right to examine the plaintiff as soon as

a copy of the examiner's appointment, and that his own answer is filed, though there may be other defend. this appointment was entitled “ Fouler v. Boul. auts who have not answered; and it is not necessary to ton," instead of being entitled with the names of

serve such other defendants with notice of the examination. The plaintiff by amending his bill does not postpone his

all the parties to the suit in full. In proceeding liability to be examined until after the time for answering before the Master, before whom all examinations

the amendments expires. Service on the solicitor of a copy of the examiner's appoint.

were formerly taken in this country, his warrant ment for the examination of a party is a sufficient notice

is the only notice that is served on the solicitors, to the solicitor; and it is not necessary that the appoint- 2 Smith's Pract. 149, 2nd Ed. 150, and never ment should dame the parties at length.

gives the full style of the cause, Bennett's Mas. Two of the defendants in this case, having filed

ter's Office, p. 1, App. There are many other their answers, obtained an appointment from one

notices and papers in a cause for which by the of the examiners for the examination of the plain - English practice this short title is sufficient, 2 tiff under the 22nd General Order of the 3rd of

Ayckbourne's Chancery Practice, pp. 73, 90, 93,

103, to 100. I think there is neither authority June, 1853, section 7, as regulated by the General Order of the 6th of April, 1857. This appoint

nor reason for holding the notice in the present

case to be insufficient. ment was served on the plaintiff's solicitors, and was served on the plaintiff himself with a subpæna

The third objection is, that the defendants who ad test. The plaintiff did not attend at the time

wish to examine the plaintiff have not served the

other defendants with notice of bis examination; and place named in the appointment, but his counsel attended, and objected that his client was

but I see no ground for bolding such notice to be

necessary: the examination is not evidence against not bound to attend for several reasons which the examiner set forth in a certificate of the facts,

the defendants; the Orders of the Court do not

declare that notice of it is to be given to them; and wbich are stated in the Vice-Chancellor's

if a cross-bill for discovery were filed under the judgment. Mr. McLennan, for the defendant, thereupon

old practice, the other defendants would not have moved ex parle for the usual order, that the plain

been parties to it; and if, in addition to these tiff do attend at his own expense and be sworn

considerations, I may compare the convenience and examined, or stand committed.

of each course, as a guide for ascertaining what Mr. S. Blake, for the plaintiff, being present,

the rule is, I think that ihe balance of convenis was allowed to oppose the motion. He submitted,

ence is not in favor of what the plaintiff contends also, that the motion could only be made on

for. So also as to the expense. The rule con

tended for would add to the expense of almost notice.

every examination where the defendants do not Mowat, V, C.-A motion of this kind is made appear in the suit by the same solicitor, and it em parte where the person to be examined is a would, I think, be very seldom, and only in very witness; 2 Daniel's Practice, Perkins' ed. 1057; special cases, that the opposito rule would, in and ad ex parte motion has been allowed in

practice, render necessary the expense of a second several cases where the person to be examined examination of the plaintiff.

Chan. Rep.]

McNABB v. Nicholl-MORLEY V. MATTHEWS.

[Chan. Rep.

The ques

a

then go.

To these three objections stated to the exami- an allegation that the trust was evidenced or Der Mr. Blake, in his argument before me, added admitted by writing. The plaintiff states the a fourth, viz., that the plaintiff is not liable to

trust in his bill, and this is all that is necessary examination until the answers of the other de- for the purposes of pleading. He has then to fendants are in. This objection seems to me to prove the trust by proper evidence. bave no better foundation than the others. The tion here is, whether any evidence is necessary, analogy in case of a cross-bill is against it. The the bill not having alleged the trust to be in language of the General Order is not in its favor. writing, and the defendant having allowed it to This Order provides that any party plaintiff may be taken pro confesso, or as confessed-or having be "examined at any time after answer : and thus confessed it-though not in writing, as be any party defendant may be examined at any might have done in an answer. There is no ndtime after answer,” &c. It is clear that the mission in writing here by the defendant, nor is expression “nfter answer,” in the second case any evidence in writing shewn. referred to, does not mean after all the answers In Davies v. Olty, 33 Beav. 540, the question are filed; and the fair inference is, that the

arose, or might have arisen, upon demurrer. same expression in the first case had not that

The bill did not allege tbat the trust was evimeaning either. I think that after any defend

denced by writing. The Master of the Rolls held ant files his answer, the plaintiff may, under the the bill sufficient and overruled the demurrer. order, examine such defendant, and that the Now, suppose the defendant bad not answered, defendant may examine the plaintiff, whatever but had allowed the demurrer to stand, I appremay be the position of the cause in reference to hend the plaintiff would have taken his decree the other defendants, -over which the plaintiff, as a matter of course, and without evidence. He and not the defendant, has the control.

would not be called upon for proof, and yet the An affidavit must be filed of the service of the demurrer contained no admission in writing, of subpena and appointment. The usual order will the terms of the trust. The effect, I think, of

the bill being taken as confessed, cannot be less.

It at least amounts to this, that the defendant McNABB V. NICHOLL.

waives all proof by the plaintiff. Pleading-Pro con fesso-Satute of frauds. The plaintiff by his bill alleged that certain lands had been conveyed to the defendant to hold in trust for the grantors,

MORLEY V. MATTHEWS. and that the defendant had not given any value or consleration therefor. the conveyance being made in order

Practice- Reference back to Master- Evidence-Correcting to prevent the gran'or foolishly and improvidently dis

report. piping of or parting with bis estate; but did not allege Where a reference back to the Master to review his report any kiriting evidencing the trust. The defondant having is directed, the Master is at liberty to receive further sufered the bill to be taken against bim pro confesso.

evidence, Held [Per Vankoughnet, C.) ibat the facts stated, remaining Where the court on a reference back to the Master, does not undenied, were sufficient to enable the court to declare mean that he shall take further evidence, the order conthe defendant a trustee, and that it was not indispensible tains a direction to that effect; unless the reference back that the bill should alleve that the trust was evidenced is expressed to be for a purpose on which further evidence by any writing

could not be material.

The cuurt will at almost any stage of a cause mako a special This was a hearing pro confesso. The bill in

order for the correctiou of slips in a Master's report. the cause alleged that Peter McNabb, deceased, baving, during his life time, been seized in fee Motion to quash the certificate of the Master of the east balf of lot No 6, in the 4th concey

at London, on the ground that one of the schesion of the township of Erin, containing 100

dules prepared by the Master had been omitted acres, did, on the 14th of February, 1851, con

from his report by mistake. vey this property to the defendant, without bis Roof, Q C., and Chadwick, in support of the giving any value or consideration therefor, and application. upon trust for him, the said Peter McVibh, and Blake, Q. C., contra. for his benefit, so as to prevent the said Peter McNabb foolishly and improvidently disposing of

Mowat, V. C., --The Master at London made or parting with the said lot.” The bill contained a report in this cause, dated the 10th day of July, further allegations, to the effect that the convey. 1866, which the plaintiffs appealed against. The ance was solely for the purpose of enabling the first ground of appeal was allowed by consent defendant to bold the lot in trust for Peter Mc- without argument, and was in the following Nabb. It alleged the decease of Peter McNabb words: " That the Master should have taken a intestate, and that plaintiff and others were en- separate account of the principal or corpus of titled as beirs at law; the occupation of the the estate, and of the income which by the test. property by defendant, and his refusal to convey ator's will is charged with legacies, and have alto the plaiptiff and other heirs, and the pretence

lowed against such principal or corpus the proper set up by the defendant, that the lot had been charges affecting the same, and have allowed as conveyed to him absolutely. The prayer of the against such income, first, such disbursements as bill was, that the defendant might be declared a were properly chargeable against the income; trustee for the plaintiff and the otber heirs of second, the annuity to the testator's widow and Peter McNabb.

sister; and, third, the sums payable to the testaOn the cause being called on,

tor's children." Mr. Crooks, Q. C., for the plaintiff, asked for

Under the order allowing this objection (12th a decree as prayed.

September, 1865,) the Master has ruled that he

may allow as income sums wbich by his former VANKOUGHNET, C.-I entertain no doubt that report he did not allow either as principal or it was not necessary that the bill should contain income; but tbat be is not at liberty to allow

Chan. Rep. 1

MORLEY V. Matthews-Re Owens.

[Chan. Rep.

any sums as principal which he did not allow by his former report.

No ground was suggested to me on which this distinction can be supported. If the Master can take an account of further sums of income, he can take an account of further sums of principal, and I thiuk tho practice does not require or autborize the exclusion of either. The general rule is that on a reference back to the Master to review his report, he is entitled to receive further evi. dence. In Tuyford v. Truill, 3 M. & C. 649, Lord Cottenham said: “[ have always been of opinion that the Master is entitled to receive further evidence. It seems to me noosense to refer it back to the Master, unless be is at liberty to receive further evidence; because the conclusion afforded by the evidence already taken might bave been drawn by the court without the assist. apce of the Master." The case of Livesey v. Livesey, 10 Sim. 331, is to the same effect. I apprehend, therefore, thrt where the court does not mean that the Master should take further evidence, the order must contain a direction to that effect, unless the reference back is expressed to be for a purpose on which further evidence could not he material.

The objection of the appellants in the present case that the Master should have taken " a separate account of the principal or corpus," and income, respectively, not thit he should by his report have distinguished how much of the amount thereby found was for principal and how much fur income. I know of no practice that forbids the Master, upon the allowance, simply. of such an objection, to charge for either princi. pal or income suis he had not charged by his previous report.

Whatever may have been the notion in the mind of the gentleman who drew the Reason of Appeal, or in the minds of the counsel who consented to its being allowed, all I can say is that the language employed, the meaning and effect of which alone I have to consider, is not such as by the practice of the court excludes additional charges.

It appears that the only item hitherto excluded by the Master was omitted from his first report by a mere slip, the receipt of the money having been admitted by the accounting party in bis aecounts brought into the Master's office. The court will at almost any stage of a cause make a special order for the correction of slips of that kind in a Master's report, Richardson v. Ward, 13 B. 110; Ellis v Marwell, Ib. 287; Prentice v. Men. sal, 6 Sin 271 ; Turner v. Turner, 1 J. & W. 39; Turner v. Turner, I Swanst. 154. But the items wbich may be added by the Master when a re. port is sent back to be reviewed do not appear to bc confined to this class.

The question was argued before me hy counsel for all, and I have followed the example of Lord Cotteubam io Troyford v. Traill, 3 M. &. C. 649, and expressed my desire of the parties, though tbis is not strictly regular. No order can be drawn up on the motion except as to costs. I think the costs of the application should be paid by Mrs. Matthews, who has wrongtally resisted being charged with the item which bas given rise to the Master's erroneous ruling. See General Order, No. 36, of December 20th, 1865.

RE OWENS.

Insolvency Act-- Appeal. Notice of the application for an allowance of appeul must

be served within eight days from the day on which the judgment appealed froin is pronounced, but the application

itself may be after the eight days. Where the notice was served in time, but named a day for

the application, which did not give the time the insureat was entitled to, and was irregular in some other respects, the notice was held amendable in the discretion of the judge.

This was a motion in Chambers by creditors for the allowance of an appeal from the decision of the County Court Judge, in respect of the insolvent's certificate.

Mr. Hodgins, in support of the application. Mr. Cattanach, contra.

Mowat, V. C. -The 9th section of the Insolvency Act of 1864, sub-sec. 12, makes the order of the County Court Judge “final unless appeal. ed from in the manner berein provided for appeals from the court or judge." This manner is pointed out in the 7th section, the 2nd sub-sec. of which provides that the party dissatisfied may in Upper Canada appeal “to either of the superior common law courts or to the Court of Chaocery, or to any one of the judges of the said courts; first obtaining the allowance of such appeal ...... ... by a judge of any of the courts to which such appeal may be made."

The third sub-section provides that “such appeal shall not be permitted unless the party desiring to appeal applies for the allowance of the appeal, with notice to the opposite party within five days from the day on which the judg. ment of the judge is rendered.” By the act of 1865, chapter 18, section 15, the delay of apply. ing for the allowance of an appeal is thereby extended to eight days, instead of five.

In the present case the order from which these creditors desire to appeal was made on the 2nd of June. The creditors reside in Montreal; the insolvent resides in Guelph; and the notice of application for the allowance of the appenl was served on the 7th, and was returpable on the 9th of June. The notice, therefore, was both served and returnable within eight days from the rendering of the judgment.

Mr. Cattanach, for the insolvent, objects, however, that the notice was insufficient on various grounds The most formidable of these grounds is this:-A subsequent section of the act of 1864, section 11, sub-section 9. provides that one clear day's notice of any petition, motion or rule, shall be sufficient if the party notified resides within fifteen miles of the place where the proceeding is to be taken, and one extra day shall be sufficient allowance for each additional fifteen miles of distance between the place of service and the place of proceeding." Here, it is said, there has beer but one clear day's notice ; while the insolvent resides at Gue'ph, and was there. fore entitled to longer notice: and that the notice served was therefore insufficient and irregular, and that the application for allowance should consequently be refusel. The effect of yielding to this objection would be to prevent any appeal pow from tbe decisiou complained of.

The notice contemplated by this enactment, according to the construction of this and the other clause wbich is contended for, would render

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